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Despite critique, Roberts once failed to defend a law

During Wednesday's Supreme Court arguments on same-sex marriage, Chief Justice John Roberts asserted that President Barack Obama's decision to keep carrying out the Defense of Marriage Act after concluding that it was unconstitutional indicated that he lacked "the courage of his convictions."

But Chief Justice John Roberts was involved in an arguably similar situation back in 1990, when the George H.W. Bush administration refused to defend a legislative rider on affirmative action even as the underlying federal agency continued to abide by it.

Here's what Roberts said Wednesday during arguments over DOMA: "If he [the executive, meaning the president] has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, 'Oh, we'll wait 'til the Supreme Court tells us we have no choice.'"

Back in 1990, Roberts was acting solicitor general when the Bush I administration concluded that a rider which purported to force the Federal Communications Commission to maintain certain racial preferences was unconstitutional. Instead of putting forward the best argument in favor of the law, the Justice Department filed an amicus brief with the Supreme Court in Metro Broadcasting v. FCC urging the justices to reject the legislation. Roberts was the leading name on the brief and an internal memo disclosed in 2005 said he was "reluctant" to support the statute. However, after a plea from the head of the FCC, the Bush administration did permit the FCC to defend the law at the high court.

One distinction between the Metro Broadcasting case and DOMA is that the 1990 case involved an independent federal agency, the FCC, which has a great deal of autonomy in its operations. It's not clear the FCC could be ordered to defy a statute even if the president wanted them to. Many Obama White House executive orders and directives are described as binding on executive branch departments, but simply as encouraged upon independent federal agencies and commissions.

In any event, the Metro Broadcasting case doesn't seem to fit squarely into the categories Justice Antonin Scalia laid out Wednesday as the only appropriate ones for the Justice Department to refuse to defend a law. It didn't have to do with core presidential powers being intruded upon by Congress. And it doesn't appear to have involved a situation where, as Scalia put it, "no possible rational argument" could be made for the law. Indeed, the Supreme Court voted, 5-4, to uphold it, although the court reversed itself on the central question five years later.